City asks California appeals court to reconsider ruling in adult business case

Friday, July 16, 1999

The city of Anaheim has asked a California appeals court to reconsider its recent ruling that found city officials had violated the First Amendment rights of a prospective adult business owner when it amended zoning laws to deny him a permit.

Badi Abrahim Gammoh sued city officials after they refused to grant him a permit to operate an adult business in an industrial area of the city.

City officials denied the permit request because the business would be within 400 feet of undeveloped land that could be zoned residential. The city’s zoning code prohibits adult businesses from locating within 400 feet from areas zoned residential.

While Gammoh’s application was being processed, city officials amended the zoning law to prohibit adult businesses from operating within 100 feet of a freeway. Gammoh’s property is located right off an area freeway.

City officials also amended the law to rezone the area surrounding Gammoh’s property for only “upscale” industry.

Gammoh charged that both amendments to the zoning code were passed in order to thwart his efforts to open an adult business.

After city officials denied his permit, Gammoh sued in state court, alleging his First Amendment free-expression rights were violated.

After a trial judge dismissed his claim in 1995, Gammoh appealed. Last month, the California appeals court ruled in Gammoh v. City of Anaheim that city officials were not justified in denying the permit.

“While reasonable location limits to keep adult businesses apart from residential zones are obviously constitutional, that principle cannot be twisted into a per se rule that any time an adult business might be located within a given distance of any land zoned residential the location limit is constitutional,” the court wrote in its June 29 decision.

The city argued that it was not infringing on Gammoh’s free-expression rights but was protecting itself from the harmful secondary effects associated with adult businesses. The California appeals court rejected that argument, writing that “the city’s position strays beyond the bounds of reason.”

“A single adult business poses no secondary effects on an odd, partially undeveloped parcel of vacant land in an industrial zone,” the court wrote.

The appeals court also rejected the city’s other two justifications for denying Gammoh a permit: the rezoning of the entire area for “upscale industry” and the “freeway exclusion” rule.

The court blasted the city for making these changes after Gammoh had already applied for the permit. “By changing the rules of the game while it was being played, the effect was to confer on the city the arbitrary power to censor speech,” the court wrote.

In this case, “redevelopment … becomes a tool for a city to arbitrarily exclude adult businesses,” the court said. To allow the city to amend its zoning code any time an adult business owner applied for a permit “would make it virtually impossible for an adult business to operate.”

Finally, the appeals court also rejected the “freeway exclusion” rationale. City officials contended that it could regulate adult businesses near freeways to avoid “visual blight.”

The appeals court also rejected this argument, noting that “there is no necessary relation between the mere existence of an adult business and visual blight.” The court said any problems of visual blight would be better addressed through “appropriate sign and exterior requirements.”

The city earlier this week filed a motion asking the appeals court to reconsider its ruling. Jeffrey Goldfarb, attorney for the city of Anaheim, was out of town and unavailable for comment.